Rachel Corrie: Another Case of Military Protection by the State?

28/08/2012 16:21
|
Updated
28 October 2012

Zak Golombeck
Clinical negligence and human rights lawyer, with an interest in international law and affairs

Nearly nine and a half years after the death in Rafah, Gaza, of Rachel Corrie, an American International Solidarity Movement volunteer, a Haifa district court has ruled that the State of Israel, vicariously liable for the Israeli Defense Force (IDF), did not breach their duty of care owed to Rachel and did not violate her 'right to life'. To précis, the court ruled that Rachel had intentionally acted as a human shield to defend the destruction the homes which were purported to be being used to harbour Palestinian militants or weapons. In doing so, the court ruled that Rachel was defending terrorists and should have removed herself from the zone of danger.

The lawsuit was filed by Rachel's parents, which alleged unlawful / intentional killing, or alternatively gross negligence. The case opened in March 2010 and lasted for some 16 months. The writ came following an internal IDF inquiry which concluded that the driver of the Caterpillar bulldozer had not seen Rachel as he advanced towards the intended destruction site.

First and foremost, the Judge held on the factual evidence before him that the driver of the Caterpillar bulldozer was not able to see Rachel standing in front of it. There was also evidence adduced from fellow activists to the contrary, although the Judge preferred the driver's evidence. Secondly, and somewhat controversially, the Judge chose to invoke the principle of the combatant activities exception, ruling effectively that Rachel's activism was taking place in a 'war zone' where IDF forces had been under recent attacks.

Rachel's status as a combatant (privileged or unprivileged) or as a non-combatant might be academic taking into account the Judge's finding of fact regarding the driver's view. It is difficult to accept that Rachel, in standing guard in front of the bulldozer's path, unarmed, posed any threat to the IDF personnel and could be found to have been taking a "direct part in combat", such that would qualify her as a combatant under international law. Furthermore, despite previous attacks on the IDF forces, it can also be argued that this was not a combat operation, but instead one in which military vehicles were in use for non-combat operations.

Rachel Corrie's case has become a cause célèbre for many on the Pro-Palestinian Left. They regard the decision today as that by a 'kangaroo' court, and one in which judicial deference has transformed into protection of State interests. The former is nonsense; I challenge any person to produce evidence of a Palestinian court case in which Israeli military personnel or civilians might have been killed unlawfully. Furthermore, the Judge heard months of lay and expert evidence before handing down judgment. The latter, however, rings more truth. In a country in which the military is revered so highly, it is almost impracticable that the military would face deprecation at judicial level.

Speaking from professional experience, cases in all countries against a military (and thus the State) are not without difficulty. Legal principles become unnecessarily more obfuscated when dealing with the military, and the sad case of Rachel Corrie is no exception. The long arm of the law often fails to reach a State's military; regrettably, the law is not always above them.